Citation Nr: 0517955
Decision Date: 06/30/05 Archive Date: 07/07/05
DOCKET NO. 02-01 955A ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua,
New York
THE ISSUE
Entitlement to reimbursement or payment of unauthorized
medical expenses incurred between October 2, 2001 and October
22, 2001.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The veteran had active military service from February 1937 to
August 1939, and from May 1944 to November 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a December 2001 decision by the
Department of Veterans Affairs (VA) Medical Center (VAMC) in
Canandaigua, New York. This case was remanded by the Board
in May 2003.
The appeal is REMANDED to the VAMC via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
As indicated in the Introduction, the Board remanded the
instant case in May 2003 for further development. In May
2005, and before the VAMC completed the development requested
in the remand, the Board's Case Intake section, for reasons
which remain unclear to the undersigned, requested the
immediate transfer of the case to the Board's offices. The
claims file was transferred to the Board the same day. After
investigating the matter, the undersigned has determined that
no further administrative actions are necessary at the Board
level, and that the case should be returned to the VAMC for
the completion of the development requested in the May 2003
remand.
In this regard the Board notes that the May 2003 remand
instructed the VAMC to contact Dr. T. Damron and request that
he provide copies of any pre-authorization documents from VA
pertaining to the veteran's treatment from October 2 to
October 22, 2001. The record reflects that in October 2004
the VAMC requested the referenced information from Dr.
Damron, and that the physician responded later in October
2004.
The Board sincerely regrets any delay occasioned by the
premature transfer of the case.
Accordingly, this case is REMANDED to the VAMC for the
following actions:
1. The VAMC should associate the
veteran's entire administrative
file, to include all reports of
contact with the appellant, his
daughter, and University Hospital
staff, with the claims folder.
2. The VAMC should ensure that the
documents referenced as enclosures
in letters from the veteran's
daughter, dated in December 2001,
are contained in the administrative
file. She makes specific reference
to bills from University Hospital,
as well as pre-authorization
documents being provided to the
veteran and T. Damron, M.D. If the
enclosures are not of record, the
VAMC should contact the veteran and
request copies of such records.
3. The VAMC should then review the
evidence of record and re-adjudicate
the issue on appeal. The VAMC must
ensure that all action necessary
under the Veterans Claims Assistance
Act of 2000 concerning the duty to
notify and assist the veteran are
accomplished. 38 U.S.C.A. §§ 5100,
5103, 5103A and 5107 (West 2002).
This includes notification of the
law, as well as compliance with the
notice requirements explaining the
respective responsibilities of the
veteran and VA in obtaining evidence
in connection with the instant
claim. See Quartuccio v. Principi,
16 Vet. App. 183 (2002). If further
development is necessary to comply
with the applicable law and
regulations, that development must
be accomplished. The VAMC must
provide adequate reasons and bases
for its determination. This
includes obtaining and associating
with the claims file the treatment
records for the time-period in
question, and addressing the
assertion of the appellant's
daughter that the veteran could not
be transferred to the VAMC due to
post-operative infection.
4. If the benefit sought on appeal
is not granted to the veteran's
satisfaction, the VAMC must issue a
supplemental statement of the case
and provide the appellant and his
representative with an opportunity
to respond. This includes making a
specific request to the veteran's
representative for submission of a
VA Form 646. The VAMC is advised
that they are to make a
determination based on the law and
regulations in effect at the time of
their decision, to include any
further changes in VCAA and any
other applicable legal precedent.
After the veteran has been given an opportunity to respond to
the supplemental statement of the case and the period for
submission of additional information or evidence set forth in
38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable,
the case should be returned to the Board for further
appellate consideration, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the VAMC. The veteran has the right
to submit additional evidence and argument on the matter the
Board has remanded to the VAMC. Kutscherousky v. West, 12
Vet. App. 369 (1999).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2004).